Claim of Kleid v. Carr Bros. , 275 A.D.2d 866 ( 1949 )

Foster, P. J-., Brewster and Santry, JJ., concur; Bergan, J., dissents in the following memorandum in which Deyo, J., concurs: The presumption created by section 21 of the Workmen’s Compensation Law must rest on some fact tending to connect the accident with the employment. There is no such fact in this record. It is not enough to say the employee was on the station platform in the course of employment. He was not on the platform when injured. Where he was and what he was then doing are crucial and controlling facts, as an examination of the long line of authorities will demonstrate. Certainly there is substantial evidence here that he was not selling anything in his employer’s import-export business in the Brooklyn tunnel. Nothing he could be doing there would have any possible relationship to employment. To invoke the presumption here is to invoke it without evidence. I dissent and vote to reverse.